Danny Masterson receives max sentence; Alex Murdaugh’s attorneys allege jury tampering – TCD Sidebar
In this episode of True Crime Daily The Sidebar Podcast
Franz Borghardt joins host Joshua Ritter to break down the biggest cases making headlines across the nation. They discuss Danny Masterson’s sentence of 30 years to life, allegations of jury tampering in Alex Murdaugh’s murder trial, and claims that a potential defense witness may have been intimidated by FBI agents following a hearing in the University of Idaho slayings.
Tweet your questions for future episodes to Joshua Ritter using the hashtag #TCDSidebar.
Joshua Ritter:
[00:00:10]
Hello and welcome to The Sidebar, presented by True Crime Daily. Taking you inside the courtrooms of high profile and notorious cases from across the country. I'm your host, Joshua Ritter. I'm a criminal defense lawyer based in Los Angeles and previously an LA County prosecutor for nearly a decade. You can find me on Instagram and Twitter at @joshuaritteresq or at joshuaritter.com. We are recording this on Thursday, August 7th, 2023.
We took the week off. We're glad to be back. And we have some exciting news for everyone. In this week's episode. Brian Kohberger's defense makes allegations of witness interference, get this, at the hands of the FBI as we continue to follow updates in the University of Idaho murder case. Also, less than a year after being convicted for the murder of his wife and son, attorneys for Alex Murdaugh are requesting a new trial in a shocking new motion alleging that a county clerk may have influenced the jury.
But first, we have breaking news just earlier today that 70s Show star Danny Masterson receives a maximum prison sentence following the actor's convictions on two counts of rape. Today, we are excited to be joined by Franz Borghardt, a former prosecutor, criminal defense attorney, friend of the show and legal analyst you can catch on Court TV and other media outlets. Welcome back.
Franz Borghardt:
[00:01:36]
How's it going, guys? Always a pleasure being on here. I mean, I must have made the cut to come back a second time, so I'm ecstatic. I'm ecstatic.
Joshua Ritter:
[00:01:45]
No, we were looking forward to this. Honestly, you were a fan favorite last time around, and it just so happened that we got some interesting breaking news. I know a lot of these cases you've been following closely. A lot of these cases are having some twists and turns that we did not expect. I know that you talk about these frequently when you do commentary on TV and I'm always interested to hear your thoughts as I am today. Before we jump into everything, though, for the listeners who have not heard you the first time around, tell us a little bit about your current practice.
Franz Borghardt:
[00:02:21]
So again, Franz Borghardt out of Baton Rouge, Louisiana. I do federal and state criminal defense throughout the state and a few different states here and there. I'm also an adjunct professor at the Paul M Hebert LSU Law School, where I teach criminal law. And then I do some media commentary, Court TV, you guys, local. I've got a seven-year-old named Fisher and I try my best to keep him not to be a convicted felon at seven years old.
Joshua Ritter:
[00:02:58]
I'm sure you've got your hands full.
Franz Borghardt:
[00:03:00]
Yes. Yes, I do.
Joshua Ritter:
[00:03:03]
All right. Well, let's jump right in. Like I said, breaking news out of Los Angeles, California. That 70's Show actor Danny Masterson has been sentenced to 30 years to life following convictions on two counts of rape earlier this year. Masterson faced a total of three counts of rape from three different accusers with the alleged assaults taking place between 2001 and 2003. Though, jurors in Masterson's trial were unable to reach a verdict in the first trial favoring acquittal on all charges, Masterson was convicted on two of the three counts in this recent retrial. Jurors were ultimately unable to reach a verdict on the third charge involving the alleged assault of Masterson's longtime girlfriend.
Scientology played a key role in both trials with Masterson's accusers, alleging the church had coerced the victims into suppressing their allegations. A major difference in the actor's retrial was evidence that Masterson drugged two victims prior to the assaults. Danny Masterson, who opted not to testify in either of his trials, also declined to address the court at sentencing. The actor was deemed a flight risk following his conviction has been detained since May. Masterson's sentence represents the maximum allowed by sentencing guidelines making the actor eligible for parole after 25 years. However, because it is a life sentence, he can be held in prison for life if he is not granted parole. Franz, jump right in. What is your reaction to this sentence?
Franz Borghardt:
[00:04:37]
I feel like they dropped the hammer on this guy and maybe that's appropriate. So not uncommon in my, at least in my neck of the woods. It's not uncommon for a rapist to get 20 to 30 years on a rape charge. Right. It's tough because, one, it's tough because I feel like the allegations of drugging increase the stakes as well as cause the conviction. So I'm not shocked by the sentence. Although, I got to tell you, I think at his age, you're looking at possibly a constructive life sentence.
Joshua Ritter:
[00:05:16]
Yeah. No, I think you're right. I mean, even if he lives to see a parole on this, he's going to be a very old man. Advanced in years beyond his age, even having been in prison for 25 years. And that is a pretty solid 25 years because that's including the good time, work time credits he would be receiving in California. Given that this is what's considered a strike offense, it's a serious felony. It's considered, he used drugging or forced to commit these rapes. It's as serious as you can get.
And I agree with you. I mean if we look, like you said, if somebody is accused and convicted of rape, this is usually what they're looking at. I guess where I found myself a little shocked was with the idea that he had been tried before on much of the same evidence, and they hung. And they didn't just hang in that trial, they hung favoring acquittal. So there was obviously issues with proof to one group of jurors. This group of jurors only convicted him of two. So they did acquit him of one of the counts or hung, pardon me, on one of the counts. So, again, they did find some issue, at least with one of the allegations, one of the victims.
But I guess the way I need to wrap my head around it is that the proof problems really shouldn't play a role in the sentencing. If you can follow what I'm saying is that if the proof is up to the jurors, so if the jurors found there's proof and they believe beyond a reasonable doubt he's guilty of this, then it's really on the judge to decide does the conduct merit the kind of sentence? Do you follow where I'm going with this?
Franz Borghardt:
[00:07:08]
So, yeah, absolutely. So generally, a hung jury is an invitation to negotiate, right? Yeah, it's a chance for us defense attorneys and the prosecutors to say, look, we tried this case. We can go back to the victims and say, hey, we tried it, they hung. No telling what a jury will do a second time. They could just as easily acquit. Why don't we come to the table and talk a little bit.
Now, when you're not a Hollywood actor, a hung jury might be an opportunity to get a good resolution that doesn't involve maybe 30 years of, 25 years of incarceration. That didn't happen here. And it shouldn't come into play with the sentencing with this judge, although I suspect what happened was this judge, assuming it was the same judge, this judge hearing the new allegations, absolutely probably turned it up a notch because of that. Because I think if you allege that somebody raped somebody, a Hollywood actor alleged to have raped some individuals, there's one view of things, right? It's another ballpark when you introduce drugging and preying on somebody, it's apples and oranges.
The truth is, is that the baseline rape, which is a horrible crime, generally is not as bad as more aggravated, which is the drugging part or using force or using some kind of violence. So it's an interesting twist. But I got to tell you, I just, I would love to have seen what happened behind the scenes with regard to negotiations. And maybe he said I'm not guilty, I didn't do it. I'm not going to ever plead anything. But every single hung jury case I've ever had has always been an invite to sit down and negotiate.
Joshua Ritter:
[00:08:56]
I agree with you. I thought we would be hearing talk about that. Now, obviously, negotiations are confidential and they're not going to release any of that. But I really thought we would be hearing that they had reached a settlement or were reaching one, but they set this quickly for retrial. There was like no doubt that they were going to retry this. And I agree with you. I think a lot of that had to do with who he was, that this is something they knew a lot of people were paying attention to across the country. It's a celebrity case. It's in Los Angeles. It's kind of like a big deal that they have to handle, how they have to handle it here.
And I think on his end as well, I think he saw, hey, you guys got problems. I did pretty well that first time around. If you want to offer me something, it better be something where I don't go to prison, or it better be something where I don't have to register as a sex offender. Probably a lot of nonstarters for the DA's office. So if they did have discussions, I imagine they were so far apart, they didn't really go anywhere.
Franz Borghardt:
[00:09:58]
So generally, in my experience, and this seems to be the trend nationally is the not registering as a sex offender is a non-negotiable point, right? That's the lesser -- if I have a client that is facing jail time or registry, generally, they're like, well, I guess I'm registering as a sex offender. This guy may have viewed any offer as unacceptable, but I would have thought from a negotiation posture and again, I don't -- I'm not his attorney. I'm not a prosecutor there. I've done both jobs. I would have thought like a lower number plus some registry would have been the sweet spot. Like a maybe a ten where he served seven and a half and he walks out of jail at some point, still young enough to have a life. His career is over. But the highest stakes we're talking about here is, hey, dude, you're probably going to die in jail so.
Joshua Ritter:
[00:10:51]
Yeah. Yeah. No, that very well could have occurred. That very well could have been taking place before the first trial. They could have been having these discussions and just never reached a point where anyone could agree and decided to put it in the hands of a jury. You talked about one thing that I did want to touch on again, though, is there was a change this time around. And that had to do with this idea that the judge allowed in further evidence regarding allegations of drugging.
Now, these rapes all took place many, many, many years ago. So there was no toxicology presented. There was no evidence to actually show that any substance was used, but they were just allowed to testify to that idea. I felt like I was more intoxicated than I normally do after a drink or two and things like that. And the judge allowed that in where the judge didn't allow that the first time around.
My first question is, one, do you think that was the game changer this time around? And two, do you think the judge changing her ruling on that, because we know that evidentiary rulings are usually the wheelhouse for appeal, do you think the judge changing her ruling on that is going to give him certain arguments on appeal?
Franz Borghardt:
[00:12:11]
The problem I've always had with this, this line of argument of, hey, I felt like I was drunker than normal, is what you're essentially from a logical standpoint saying is, I know myself when I'm drunk, when I'm impaired, when I'm intoxicated, I know me even though I'm impaired, intoxicated. And I must have been much more impaired and much more easily intoxicated this time. I think that's an absurd like without medical documentation, I will go down swinging that that's absurd, right? Jurors absolutely believe it, right? We absolutely believe that we're the best judges of our own impairment and intoxication from one impairment intoxication to the next impairment intoxication.
That all being said, I think any evidence, any suggestion that he drugged them coming from more than one person. And that, I think is the key. Right. When you have evidence from more than one person, and look, this is the hard thing for defense attorneys in a MeToo age, in a sexual assault age where we are finally, as a society, taking these really, really serious and the pendulum swinging the other way now.
The hard thing is, is when you've got multiple allegations, how do you defend against that? Like one person making it up. This is what the jurors think, one person making it up, it's possible. Two people, three people. And all of a sudden, it is impossible to take something that may not be scientifically documented, may not be scientifically provable, but is just enough to be suggested. And I think that's the game changer. Frankly.
Joshua Ritter:
[00:13:49]
I agree with you. And that's why I found it especially remarkable the first time around that they did hang it because usually you're right, you rarely see cases where it's one single accuser making an allegation of one time against a person with no forensic evidence, scientific evidence to back that up. Where you do see it is where there's more than one.
And then you're right. I think the natural conclusion that jurors start to make is, wait a minute, I can understand a mistake and an entire person's life of somebody saying they did something wrong. But two separate people who don't know each other and don't have any shared beef in the matter and they're both going to say that you did remarkably similar things, it's almost insurmountable for the defense.
Franz Borghardt:
[00:14:39]
So to be clear, I think we would both agree, sometimes people accused of rape are really rapist. That's number one. Number two, sometimes people accusing individuals of rape may have any myriad of reasons to believe that they were raped or to be fabricating the allegation. But that being said, what I think jurors are always thinking is, is the why question. Why would this individual make this up? What do they have to gain? And if you can answer that question in such a way as the defense attorney to present reasonable doubt, well, you have a shot, right? Especially in the absence of physical evidence.
However, when you're asking the question, well, why would these two independent people make it up, that becomes almost indefensible. However, we've seen other Hollywood celebrities dodge, like the matrix, dodge those bullets. And it's possible it's doable. It's just very difficult, very difficult to convince a jury that more than one person is just fabricating and making something up in life.
Joshua Ritter:
[00:15:44]
Yeah. Yeah. Well, I know this topic is very difficult for a lot of people to consider the kind of legal nuances of putting on a case like this or defending or prosecuting a case like this. So I want to applaud the prosecutors for the hard work they put in. I know doing a retrial is no easy matter and putting victims through that all again. So after all of this time now, I think justice was served on this. He certainly got his day in court. And now he's got plenty of time behind bars to be thinking about the actions that he took.
We will move on to Walterboro, South Carolina. We're following a six-week trial and murder conviction for the shooting deaths of his wife, Maggie and son, Paul. Attorneys for Alex Murdaugh are requesting a new trial for the disgraced lawyer. In a motion filed days ago on September 6th, defense attorneys allege that the county clerk, Rebecca Hill, "tampered" with the jury by advising them not to believe Murdaugh's testimony and other evidence presented by the defense.
Murdaugh's attorneys go on to claim that the clerk's actions pressured the jurors to "reach" a quick guilty verdict, citing Hill's private conversations with the jurors and even her restriction of smoke breaks during deliberation until a verdict had been reached. The motion goes on to allege that Hill also misrepresented information to the judge in order to "remove" a juror she believed to be favorable to the defense.
And the state's prosecution of Murdaugh, they theorized that the lawyer had murdered his wife and son near the family's dog kennels in order to distract investigations into his financial misdoings. Following Murdaugh's conviction, Rebecca Hill released a book last month about her experiences through the trial entitled Behind the Doors of Justice, the Murdaugh Murders. The defense is arguing that financial gain from this book was a motivating factor in her inappropriate actions.
The South Carolina attorney general will have ten days to respond to the allegations, which will likely provoke a hearing to determine how the court will proceed. Franz, I know you've been doing this a long time. First, I just want to get your reaction, then I'll tell you my thoughts on it. But have you ever heard anything like this being alleged before?
Franz Borghardt:
[00:18:18]
Well, I've heard all sorts of things being alleged before post-conviction with regard to jury tampering and whatnot. However, if I'm smiling on camera, so to speak, it's because this is so outlandish that I absolutely believe that in a small county in the middle of like the Carolinas, this happened. Right. It's on the one hand, I'm like, I don't buy it. And on the other hand, I'm like, well, it's the Murdaughs, and it's a disgraced attorney.
Look, the smoke break piece is a bit -- I'm not a smoker, so I don't know. I don't know if that's -- I don't know. But like the allegation in and of itself, is it so unfathomable? Not necessarily. And look, all he needs to do is to convince some higher court to give him another shake. Now, again, again, coming full circle, if you get another trial, what does that do? Do you go back to the trial? Do you try to negotiate some kind of a plea? I mean, he's got nothing to lose at this point. I mean, Joshua, he's got literally nothing to lose at this point.
So outlandish, maybe common for someone convicted of a crime. But look, we don't know. I'd like to see the evidence. Have there been jurors that came forward and said the clerk said this to me, and if they say that, why would they make that up? Like, why do they have to gain? So.
Joshua Ritter:
[00:19:47]
No. Yeah, I agree with you. When when I first heard, oh, the Murdaugh team is asking for a retrial, my thought was yawn, of course they are. Everybody does. Oh, they're alleging some sort of inappropriate contact with the jury. Okay, fine. I was thinking it was going to be something along the lines of a newspaper was left in the deliberation room that had a clipping around about Murdaugh left in it, or they saw a report on Murdaugh that they shouldn't have watched. Something along those lines that wasn't going to raise a lot of eyebrows. And you heard that it -- go ahead.
Franz Borghardt:
[00:20:26]
Or a juror admits to looking at social media or watching some commentary or pandit.
Joshua Ritter:
[00:20:35]
My family member told me about something and didn't know I was on the jury, whatever. Right. Then I heard it was about the court clerk and I thought, okay, well, that's a little odd that you don't usually hear those types of things being alleged, but they're sworn affidavits in here. They have sworn affidavits from jurors of this clerk telling them, don't believe the defendant. Don't be fooled by him. Pay attention to -- don't get off track and pay attention to keep your eyes on the prize type of conversations. There's allegations that she's having private meetings with the foreperson.
There's, you know, all of this stuff, which is just really -- and you know, this. I don't know how much people appreciate how inappropriate all of this stuff does. You do, right. As a trial attorney, we never break. We never take a break for lunch or anything without the judge giving what's referred to as the admonition. I remind you of the admonition. You're not to speak about this case with anyone. You're not to deliberate. You're not allowed to talk about the case with your fellow jurors. So they have those instructions every single time.
I've had jurors approach me and ask me where the restroom was in the hallway, and I have to kind of put my hands up and go, I'm sorry, I can't talk to you because I don't even want the appearance of impropriety that I'm having any sort of inappropriate contact with a juror. So the idea that jurors have now signed affidavits saying that these conversations were taking place already is mind blowing to me. My question is, obviously, is that enough? What do you think?
Franz Borghardt:
[00:22:21]
So, yeah, I think it might be enough. Yeah. Does a juror separate the judge from the clerk? And look, so the listeners and viewers understand what we're talking about. I represent folks in a major city, right? A big city, big -- we call it parishes, big clerk of court office. I never see the clerk of court. I see their minions and I never see them. I'm sure it's similar where you're at.
I also go to small rural parishes or counties, and the clerk of court is sitting in the courtroom next to the minute clerk doing the business of the court. Two different dichotomies, but they're well known. They're generally elected. Does the jury separate them from the authority figure that is the judge? And look, how do you take a crowbar to, well, yeah, the clerk said X, Y and Z, said don't believe this malarkey, but they can put that to the side, can they? Do we know if they could? And then the question becomes is how did it infiltrate jury deliberations?
And look, I'm like you, I voir dire on the first thing that comes out of my mouth is, look, if you see me in the hallway, if you see the prosecutor in the hallway and we don't acknowledge your presence, we don't talk to you, we are not being rude. We are trying to avoid the appearance of impropriety because it is not professional or appropriate that we talk to you. I just assume, though, that like the deputies in the room, the staff in the room, I always just assume they're not going to talk to the jury either.
And look, there have been instances, Joshua, to be clear, there have been instances where the jury leaves the room. And I made some kind of outlandish argument because that's the best I can do. And a deputy, a security deputy to look at me and like say, you really believe that? And I'm like, man, look, I'm just trying to paint the Sistine Chapel with crayons here. What do you expect? But that is a far cry and different than the deputy looking at the jury or the clerk looking at the jury saying, you can't believe this.
Joshua Ritter:
[00:24:25]
Yeah. No, no. You make an excellent point. The clerk almost becomes a stand in for the judge because the judge has almost zero contact with the jury. And if there is any conversation with the jury, it's in the courtroom in front of everybody else. But the clerk is like the liaison. The clerk is the person ushering them back and forth from the jury room, telling them about people have questions. They go to the clerk, hey, my child is sick. Can we take off early tomorrow? All of that runs through the clerk and there becomes this kind of surrogate relationship with the clerk representing the court.
And if the clerk is even hinting towards things, like you said, maybe an offhanded joke about a defense attorney's argument or something, I would feel that's inappropriate because of that position of trust that they have with the jurors. So I agree with you. If they can prove this and beyond the motion that they filed, I don't know how you honestly say that this did not affect his due process rights. You're right. Let's talk about that. What do you expect to next happen? So they've made these allegations, filed this motion. It has the affidavits. What do you think is going to happen next?
Franz Borghardt:
[00:25:46]
Well, let me say this before I say anything else so that the viewers and listeners at least know where I stand. I absolutely think that this joker did this crime. Right. And so the part of me that regrets that this may be true is that the justice system is going to have to do it again. Right? So what will presumably happen in a perfect world is you file your motion on the pleadings, you have the affidavits. The state responds. Right. And then there's a hearing.
And in the hearing, you're going to call jurors to the stand. And in the hearing, you're going to call the clerk to the stand and you're going to have live testimony. And then we're going to see what they all testify to. And if you have one or more jurors saying this is what the court did and you have the clerk saying, I never did that, what do you do?
I think I don't see how you avoid how do you determine that it wouldn't have affected deliberations and thusly affect the verdict? I don't know how you do that unless you elicit testimony that says, yeah, we heard that, but like we just discarded it. Like we knew that they were joking, or we didn't really care. I just don't think you can do that, though. Like this is sacrosanct. This is the leave the jury alone. Let the jury do what it's going to do. Don't meddle. Don't interfere. That's a sacrosanct component to the system.
Joshua Ritter:
[00:27:13]
Yeah. Yes, I think the only way this doesn't lead to a retrial is if somehow, they say, they call these jurors, they testify. They say, yes, all of those things were said by the clerk, but we actively did not consider any of that in our deliberations, in our discussions. But okay, well, then what are you doing giving affidavits to the defense? What do you -- you had to sign this thing and review it before you signed it. You knew what this was all about. Like, they have to know that this tidal wave was on the horizon and you're going to then say, but it didn't affect me at all. I don't know. That's the way it could turn out. I'd be shocked by that twist in events as well.
Franz Borghardt:
[00:27:59]
So I'm a big fan of Aristotle. Why do people do the things they do, right? Why does a juror make themselves a target with a giant bull's eye by saying something like this? I mean, if you're talking about notoriety and writing a book or doing something like that, any of these jurors can write their book. This was a huge high profile trial. They can write their book. They can contribute to the next documentary and make a little bit of scratch, make a little bit of money, and everybody will be fine. They gain nothing.
Like I don't know that they gain anything lying and fabricating that this clerk did something. Yeah. Like I just don't, I don't see it right now. Is it possible that they're lying? Sure. But it goes back to what you said. They swore under oath and did an affidavit. And that for the listeners, for the viewers, an affidavit is a statement made under oath. It's notarized. Like it's a significant thing. Right. We may not realize it's a significant thing, but it's kind of a big deal. So like I'm at a loss. I'm really at a loss like but again, it's so ridiculous.
Do I think that in a county of this size, with this notoriety, with this kind of family history, do I think that a clerk might do something like that? I absolutely think that they might do it. I don't know anything about the clerk. Clerk might be as credible and as straight laced as the day is long, I just absolutely leave room for the possibility that this could have happened.
Joshua Ritter:
[00:29:30]
Yeah. Yeah. Like I said, when I first heard about it, I was like, big whatever. But now, it kind of really begins to shock you when you think it through that this could have taken place. We're obviously going to follow it for updates because there's still questions about, okay, if all of this is true, what happens to the clerk now? And how about the jurors? Are they in any kind of trouble that they didn't bring this up beforehand? So a lot to still unravel about all of this. And we will continue to follow it.
We turn to our final case out of Moscow, Idaho, during a recent court appearance for suspected University of Idaho killer Brian Kohberger. Defense attorneys have alleged that FBI agents may have interfered with the defense expert witness. Kohberger has been charged in the deaths of Kaylee Gonsalves, Madison Mogen, Xana Kernodle and Ethan Chapin, who were stabbed to death in their off campus home last November.
DNA evidence played a significant role in Kohberger's arrest, with authorities alleging that a knife sheath found at the crime scene contained DNA matching Kohberger's. Defense attorneys have hired experts to cast doubt on the DNA evidence used to identify Kohberger. Specifically their use of genetic genealogy. Gabriela Vargas, a genealogy expert, recently testified at a different hearing regarding the DNA matching used in this case.
Following that testimony, Vargas was allegedly interrogated by two FBI agents. Kohberger's attorneys allege that this interrogation impacted the defendant's due process rights. Prosecutors admitted to reaching out to FBI investigators but maintained that the agents were only there in response to Vargas' possible questioning parts of her own testimony. Kohberger has waived his right to a speedy trial, with no trial date currently set in a case where prosecutors have indicated they intended to seek the death penalty. Okay.
Franz Borghardt:
[00:31:36]
Isn't it outlandish?
Joshua Ritter:
[00:31:37]
Yeah.
Franz Borghardt:
[00:31:38]
Isn't it so outlandish?
Joshua Ritter:
[00:31:39]
My question is -- yeah, it's kind of what's going on here. I mean, tell me what you think, because I can't quite figure out is this the defense trying to make a mountain out of a molehill where this is just an ongoing case and they're allowed to do kind of follow up interviews or do you find this to be inappropriate? What are your thoughts?
Franz Borghardt:
[00:32:03]
I think it's highly inappropriate to have FBI agents go to this expert and to interrogate them. And we both know, I'm assuming, I'm assuming you've dabbled, put your big foot in the waters of federal investigation work, they didn't record any of this. I'm convinced they did -- FBI agents, for the viewers, for the listeners, they don't record anything. They make little notes. Yeah, they make little notes. And in fact, if you say, hey, you mind if I record this? They shut it all down. So I think it is highly inappropriate.
Now, if the prosecutor or an expert for the prosecutor would have asked to talk to the expert, I don't think that would be inappropriate at all.
Joshua Ritter:
[00:32:52]
Good point.
Franz Borghardt:
[00:32:54]
On my cases, I absolutely invite my -- I invite the coroner and any expert to sit down and talk to me. There may be some safeguards involved for them. And in some cases, I almost wish that they don't talk to me because then when they're testifying, I can cross examine them and say, hey, you're just looking for the truth. Well, if you're just looking for the truth, why wouldn't you talk to me? Like, whose team are you on? You're obviously biased, but that is not inappropriate. Having your expert talk to an expert, not inappropriate, because the worst that they're going to say is no.
Having a law enforcement agent that has a shiny badge, having more than one, and I presume that it's more than one, bring the badges, sit them down, interrogate. And I'm using the word interrogation because it may not have been interrogation. It could be -- Joshua, it could be as light as, hey, we just want to ask you some questions. Are you cool with that?
What does an interrogation make? I know what an interrogation looks like? But again, they didn't record it. We don't know. Mountain out of a molehill. Well, my only response to that is in a death penalty case, defense's job, their sole job is to keep this dude alive. And let's not mince words. If it is a death penalty case, the state is trying to kill their client and their job is to try to keep their client alive. And anything that moves the needle, pun intended, anything that moves the needle away from their client getting death, any issue, anything that makes the prosecution say, you know what, we're not going to make this a death penalty case. I think that they're doing the right thing, making it into a molehill.
Now, what happens at the end of the day as a result of this? I mean, it doesn't lead to an acquittal. I mean, it's just a fact now. It's a part of the case and the state has to deal with it so.
Joshua Ritter:
[00:34:48]
Yeah. Yeah. As you were talking, I started thinking because, listen, nobody's saying what took place is illegal, right? I mean, the FBI is allowed to go to speak to whoever they want. And obviously they can't intimidate them, that would be problematic, but they're allowed to go question whoever they want. Oftentimes, investigators by the DA's office will be sent out to kind of do follow up and things like that.
But the things that really bother me and you made me think of it as we were talking here are, one, who was sent? It's the FBI. Okay. I don't care who you are. FBI agents knock on your door, you get a little sweaty, okay, because you know that the entire power behind the federal government stands with them. And two, this was apparently, in regards to, her testimony and perhaps inconsistencies in her testimony or why she changed it. What is the FBI going to question her about that for?
One, you're right. If they do have a problem with her testimony changing, if you want to question her again, have an expert do it or ask to bring her in to question her on it. Or how about cross-examination, which is where that is usually taken place, where you usually point out inconsistencies in somebody's testimony.
Franz Borghardt:
[00:36:11]
Impeachment.
Joshua Ritter:
[00:36:12]
You don't then send someone out, especially FBI agents, to let them know that this person may be changing their testimony. It just -- here's the thing about it, it reeks of intimidation. It may not be according to the letter of the law, but it reeks of it.
Franz Borghardt:
[00:36:28]
So I know that you were a former prosecutor. I had in my office -- now, this is Baton Rouge, Louisiana, small town, but a big city. I had two investigators that I could send to do anything I wanted. And if I wanted them to talk to a witness, I could send them to do it. I never called the FBI. As a former prosecutor, I can say safely, I never called the FBI. I never called another sovereign government agent to talk to one of my witnesses or a witness in a different sovereignty case.
That being said, I think you're spot on. I wouldn't want to talk to her or him at all. I would say, you know what, thank you, thank you for allowing me to impeach you later. God bless you. And move on. And look, they can't get around the fact, I know we don't have the time to really deep dive into the genealogical DNA piece. They can't get around it that this is going to be one of the giant test cases for that.
As a high-profile case and as a death penalty case, I would expect we're going to have some of the best and brightest on both sides arguing about the appropriateness of this from a constitutional standpoint, from a scientific standpoint, and that they can't get past. All this other stuff, all the FBI going to talk to the expert, that is just silly. Like that doesn't move the ball for them in any respect. I just --
Joshua Ritter:
[00:37:56]
Yeah. And you're right. It doesn't get the defense an acquittal. It doesn't really accomplish anything. I just think that now they might be making some headway as far as the media perception of this whole thing, because it just seems like such an unforced error on the prosecution's part. Didn't need to happen. No reason for it. It just looks bad, even if everybody's motivations were innocent.
Franz Borghardt:
[00:38:23]
So keep in mind that with enough small issues and enough big issues, the state has to look at the victims at some point, the victims' family members and say, you know what, we're going to be working on this case. If it's a death penalty case and we get a conviction and they vote death, we're going to be working on this case for the next 20 to 30 years because of these all these small little case issues. Or we can pursue the other route where we take the death penalty off the table and all of a sudden, the shelf life, the half-life of the case shrinks. And that enough work by the defense might get them there.
Joshua Ritter:
[00:39:00]
So very true. And that might be the only goal they're going for. You're right. I think you're right that that's all that they're shooting for here. That being said, you bring me to my last question. This is a delay. They are kind of bringing a kitchen sink mentality to this defense here. You have any guess on what this could actually see the light of day at trial?
Franz Borghardt:
[00:39:26]
So as someone who did a little bit of death penalty work in his life, I will say three to five years is not unusual. At least in my neck of the woods, for a case of this magnitude, three to five years before trial. And look, I know that's a long time, right. But it's a lot of we're going to litigate. We may take a direct appeal. We may litigate some more and we may do this and do this. I mean, look, how many more times is the state going to use FBI agents to intimidate witnesses? Because that may cause delays.
So I would say two to three years at a bare minimum, if we're still talking about this past in the five-year mark is kind of a -- so it's going to take a long time. And as it should. Right. It should take a long time when it's a death penalty case. Taking a death, you know, just so everybody knows, picking a jury and a death penalty case may take weeks, if not months, especially in a high-profile case, especially in a high profile case in a community that has been doing nothing but talking about it. Right. So that being said, it's going to take a long time to get to justice on this one.
Joshua Ritter:
[00:40:34]
Yeah. Yeah. I agree with you. Yeah. I mean, when you put out those numbers, it sounds almost outrageous, but you're right. I'm thinking back now on death penalty cases I've worked on and I can't think of one that was brought to trial before then. Now, none of them had the kind of media attention that this one does but that doesn't necessarily change the timing of things.
And you're right, it's not just a matter of when can they get ready. It's a matter of all of these little unforeseen delays along the way. Because you're right, this FBI issue, they make a big deal out of it. They make a request of the judge to prevent the prosecution from presenting some witness. The judge denies that. And they take that up on a writ. And that immediately goes to a court of appeal.
And because it's a death penalty case, it's probably going to get heard. That could delay this by weeks by the time they get in front of a hearing. So, yes, there are many ways in this in which this whole thing could drag out for months and months and months, if not years. Pretty incredible to think about. Franz, thank you so much for coming on this week. Where can people find out more about you?
Franz Borghardt:
[00:41:39]
So you can go to www.borghardtlawfirm.com. That's borghardtlawfirm.com or we can have a chat sometimes on Twitter, @BorghardtLaw and social media. I'm very easy to find and I love interacting with folks about legal topics probably to my own detriment, Joshua. So yeah, Twitter, social media, I'm all on all of it.
Joshua Ritter:
[00:42:01]
Fantastic. Always, sir. It's a pleasure. Thank you again. I'm your host, Josh Ritter. You can find me on Instagram and Twitter at @joshuaritteresq or at joshuaritter.com. You can find our Sidebar episodes wherever you get your podcasts. And we want to hear from you. If you've got questions or comments you'd like us to address, tweet us your questions with the hashtag #TCDSidebar. And thank you for joining us at the True Crime Daily Sidebar.
